KELLO OG-SPQFFORD CASE—FROM LOUISIANA. 






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SPEECH 


OF 


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HON. A. H. GARLAND, 

OF ARKANSAS, 


IN THE 


SENATE OF THE UNITED STATES, 


MAY 20, 1880. 


Crime shall forfeit the right to any office of profit or trust .—McCrary 
on Elections, p. 328. 



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SPEECH 


OF 

HON. A. H. GARLAND. 


SENATOR FROM LOUISIANA. 

Tbe PRESIDENT pro tempore. The morning hour has expired. The 
regular order is the resolutions reported by the Committee on Privi¬ 
leges and Elections in regard to the seat of the Senator from Louisi¬ 
ana, which are before the Senate, upon which the Senator from Ar¬ 
kansas HMr. Garland! is entitled to the floor. 

Mr. INGALLS. I think the rule that the Senate adopted declared 
that the consideration of the Calendar should continue until half 
past one. That is the language of the rule explicitly. 

Mr. GARLAND. That was before we changed the hour of meeting 
from twelve to eleven. 

Mr. INGALLS. But does the meeting of the Senate at eleven abro¬ 
gate the order that the consideration of the Calendar shall continue 
until half past one ? 

The PRESIDENT pro tempore. In making the announcement he 
made just now, the Chair overlooked the exact language of the rule. 
It has been heretofore the case that there was only an hour and a 
half for the morning hour. The rule is as the Senator from Kansas 
states it: 

That at the conclusion of the morning business for each day the Senate will pro¬ 
ceed to the consideration of the Calendar, and continue such consideration until 
half past one o’clock. 

Mr. INGALLS. The very object of meeting at eleven, as I under¬ 
stood, was to give the Senate more time for the consideration of 
morning business. 

The PRESIDENT pro tempore. The Chair looked into the prece¬ 
dents this morning before the Senate met, and found that it had been 
the universal usage of the Senate when the Senate met at an earlier 
hour that the morning hour should extend only an hour and a half 
from the time of meeting; but the Chair does not see how he can get 
rid of the positive language of this rule. 

Mr. BURNSIDE. I move that the morning hour be extended to 
half past one. 

Mr. INGALLS. It does not require any motion. 

The PRESIDENT pro tempore. It does not require any motion. In 
the opinion of the Chair the point is well taken. 

Mr. PLUMB. Mr. President- 

Mr. FERRY. I hope then the Calendar will be proceeded with in 



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its order. I have been patiently waiting for a bill that has once 
been considered by the Senate and recommitted to a committee and 
modified according to the objections made. I have abided the inter¬ 
position of different Senators, and I have said not a word until the 
present moment. Now, I ask, as we have adopted one hour extra for 
the purpose of considering the Calendar, that we take up the Calen¬ 
dar in its order, and that Senators shall be treated equally, instead 
of this effort to interpose and take up bills out of order. I therefore 
shall object. 

The PRESIDENT pro tempore. The Chair understood the Senator 
from Kansas to claim that his bill does stand at the head of the Cal¬ 
endar. 

Mr. FERRY. Then I withdraw my objection in that case, but I 
shall object in any other. 

Mr. YOORHEES. The Senator from Arkansas [Mr. Garland] 
very much prefers to go on with his remarks at this time. Having 
supposed that he would take the floor at this hour, it is disagreeable 
to him not to do so now; and I suggest to the Senator from Kansas 
that we can occupy an hour after the Senator from Arkansas gets 
through with the Calendar by general understanding as well as we 
can now. I hope the Senate will allow the Senator from Arkansas 
to proceed with his argument at this time. I ask unanimous consent 
that he be allowed to go on now. 

Mr. PLUMB. In response to the request of the Senator from Indi¬ 
ana I will state that so far as my interest in the Calendar is concerned, 
I am entirely willing that the Senator from Arkansas shall now pro¬ 
ceed with his remarks subject to this condition that whenever he 
shall have concluded his remarks the Calendar shall be proceeded 
with, commencing at the regular order of business, for one hour. 

Mr. YOORHEES. I think that is fair. 

The PRESIDENT pro tempore. The Senator from Indiana asks 
unanimous consent that the Calendar may be laid aside informally, 
and that the Senator from Arkansas may be allowed to proceed with 
his remarks. The Chair is compelled to state that if those remarks 
extend beyond half past one the Chair does not at present perceive 
how the Calendar is to be resumed to-day. 

Mr. INGALLS. By unanimous consent. 

Mr. CONKLING. The proposition is that by unanimous consent it 
be resumed for an hour afterward. 

The PRESIDENT pro tempore. Is there objection ? The Chair hears 
none, and the Senate so agree. The resolutions in regard to the 
Senator from Louisiana are before the Senate. 

The Senate resumed the consideration of the resolutions reported 
by the Committee on Privileges and Elections relative to the seat 
held by William Pitt Kellogg as a Senator from the State of Lou¬ 
isiana, the pending question being on the amendment proposed by 
Mr. Hoar as a substitute. 

Mr. GARLAND. Mr. President, ordinarily it would be a matter of 
no particular difference to me whether I proceed at one hour or an¬ 
other ; but as I had expected to take the floor at this hour and had 
made committee arrangements to follow the conclusion of my remarks, 
I prefer to proceed now. 

Before going to the case itself I think it is proper that I should 
allude to some remarks that were made by the Senator from Maine 
[Mr. Blaine] not now in his seat, several weeks since, when he had 
the floor on this subject, in which he stated that there was an agree¬ 
ment, as he had understood, between the respective parties as to the 


5 


seating of Messrs. Kellogg and Butler. I then occupied tempora¬ 
rily the chair. The Senator from Maine referred to a question of my 
own, propounded to the Senator from Vermont [Mr. Edmunds] when 
he introduced the resolution as to the time of taking the vote on those 
cases, and also to a statement made by the Senator from Ohio [Mr. 
Thurman] at the same time. I deem it necessary upon reflection to 
make an explanation of the question that I propounded to the Sen¬ 
ator from Vermont at that time, and also to state what I know in 
reference to any agreement regarding the seating of these two gen¬ 
tlemen. 

On November 30,1877, the Senator from Vermont introduced a reso¬ 
lution proposing an arrangement— 

First, to vote on the Kellogg-Spofford case at or before two o’clock and thirty 
minutes a. m. to-day. 

Then to take the vote after that on the other case, with a certain 
arrangement of the debate : 

Mr. Thurman. That would give him all the time now. 

Mr. Edmunds. Exactly; hut your side has had all the evening on the Kellogg 
case. 

The question in dispute being as to the time that would be required 
to present the case properly. Then the Senator from Vermont stated 
the other part of his proposition, and this followed: 

The Vice-President. Is there objection ? 

Mr. Garland. Is there nothing, I ask the Senator from Vermont, of the other 
case? 

Mr. Edmunds. I propose nothing. I ask unamimous consent for that I have 
named, nothing more, nothing less. 

Mr. G arland. I do not think it is an improper proposition at all. 

Then the Senator from Ohio followed with his remarks. “ The other 
case” that I had reference to in that question was the case of Eustis, 
whose case—without a contestant and without anybody disputing 
seriously his right to the seat—had been before the Senate prior to 
the consideration of either of these other cases. I had the impres¬ 
sion that there was a disposition to reach a vote on all of them, and 
dispose of all of them at once; and Eustis’s was “ the other case ” to 
which I referred in propounding that question to the Senator from 
Vermont. Efforts had been made, and successfully, as I supposed, to 
take a vote on all the cases. But by the course actually pursued 
the anomaly was presented that Mr. Eustis, who had no contestant, 
and whose case was first presented to the Senate, did not get a vote 
upon his case until the 10th of the following December, when he was 
admitted. That is all there is of that proposition. 

For one I struggled- at the time, which was finally agreed upon, 
to get a vote, for we had sat here night and day, wearied and tired, 
and the session of the Senate then called was about expiring. As to 
any other agreement beyond or further than this, I know nothing of 
it, and never heard of it until the Senator from Maine [Mr. Blaine] 
stated it on this floor. 

Now, Mr. President, I come to the question in hand. On the 25th 
of October of the same year to which I have alluded the then Senator 
from Oregon [Mr. Mitchell] introduced a resolution referring the 
contested case of Spofford and Kellogg upon its merits to the Com¬ 
mittee on Privileges and Elections. That committee, after consider¬ 
ing the proposition, reported back a resolution, first, that Kellogg 
was entitled to his seat upon the merits, and second, that Spofford 
was not entitled to the seat upon the merits ; and upon those resolu¬ 
tions the vote was taken which resulted in the seating of Mr. Kellogg 
on the 30th of November, 1877. 


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An important question is presented as to how much was settled by 
that vote, and whether any and everything connected with the seat 
was settled then beyond any inquiry at this time, or at any other 
subsequent period. It is contended that the inquiry is closed for all 
purposes ; that neither this Senate nor any other Senate during the 
six years for which Mr. Kellogg was seated can look into the ques¬ 
tion again ; and the doctrine known in the courts as res adjudicata , 
that is, that the thing has been determined, has been invoked as a 
plea or as a defense upon which to rest that position. 

To a certain extent it must be conceded there is something adjudi¬ 
cated and determined in this cause. To the length and breadth it is 
claimed, however, by those who assert that plea, I cannot yield. Ac¬ 
cepting the definition as given by the Senator from Wisconsin [Mr. 
Carpenter] who has twice argued this case, first this month a year 
ago when the proposition was oifered by the committee to take fur¬ 
ther testimony, it may be conojcded that the case is res adjudicata , 
and yet very grave and serious questions are presented for the Sen¬ 
ate to consider in this investigation. 

Just here I wish to make a statement. When the committee asked 
for further time and for leave to take further testimony one year ago, 
that was the proper time to have introduced this plea and to have 
had the Senate vote upon it. I thought so then; I still think so. 
An interrogatory propounded by me at that time to the Senator from 
Massachusetts [Mr. Hoar] will show just what I had in my mind 
then and what has been developed since by reflection and study of 
this case. The Senator from Wisconsin did then make his argument 
upon the plea of res adjudicata, but he was overruled by the Senate, 
every democratic Senator voting, as I now remember, for agreeing to 
take that testimony. If it was precluded, if the verdict and judg¬ 
ment were conclusive, the time by the precedents now and by the 
analogy that you are running this on, was when an effort was made 
for further testimony in the court where this judgment had been ren¬ 
dered. I accept, to the extent of the inquiry upon the credentials, 
the definition given by the Senator from Wisconsin, [Mr. Carpen¬ 
ter,] taken from his speech in the left-hand column, on page 4, of the 
Record of the 16th instant, which I will ask the Secretary to read. 

The Chief Clerk read as follows: 

The Senator from Georgia tried to make out that that did not amount to any¬ 
thing ; that it was some technical thing ; that “ on the merits of the case ” was 
loose and ambiguous. The Senate did not declare in its resolution in words that 
Kellogg was elected by the Legislature of the State, but with the Constitution 
before them, on the well-known principles of law applicable to the subject dis¬ 
tinctly understood and brought to their minds by debate, the Senate declared that 
on the merits, and that is apart from all technicality and all trifling objections—on 
the merits of the case, namely, the election by the Legislature of the State, his 
being thirty years of age, his having been nine years a citizen, on all the essential 
features and elements that enter into the case and make up its merits, he was en¬ 
titled to the seat. 

Mr. GARLAND. That is the fullest extent to which the plea can 
be urged here. It was demonstrated in the splendid argument of the 
Senator from Alabama who sits behind me, [Mr. Morgan,] the other 
day, that it was a question upon the credentials, the legality of the 
Legislature that elected, the qualifications of age, citizenship, and 
residence ; so far, no farther. 

Accepting those now for the sake of the argument of this case as 
the finger-boards to guide us upon this road, assimilating this to a 
case in court, I will read what the Supreme Court of the United States 
has said in reference to this matter as containing in my judgment, 


7 




after all my research in the hooks, the principle stated in one sentence, 
and in arguing the case I shall attempt to bring it within this rule 
strictly, rigidly in every respect. I refer to the decision in the Packet 
Company vs. Sickles, reported in fifth Wallace. To those Senators who 
have been discussing this matter in their minds, whether upon the 
technical plea of estoppel, or the principle of res acljudicata, or the 
doctrine of stare decisis, or on the ground of former acquittal, it is im¬ 
portant to consider well this statement by the Supreme Court, which 
statement Mr. Wells in his book upon the subject of res adjudicata 
quotes approvingly as containing the doctrine. Upon page 592 of fifth 
Wallace the court says: 

As we understand the rule in respect to the conclusiveness of the verdict and 
judgment in a former trial between the same parties, when the judgment is used 
in pleading as a technical estoppel, or is relied on by way of evidence as conclusive 
per se, it must appear, by the record of the prior suit, that the particular contro¬ 
versy sought to be concluded was necessarily tried and determined—that is, if the 
record of the former trial shows that the verdict could not have been rendered with¬ 
out deciding the particular matter, it will be considered as having settled that mat¬ 
ter as to all future actions between the parties; and further, in cases where the 
record itself does not show that the matter was necessarily and directly found by 
the jury, evidence aliunde consistent with the record may be received to prove the 
fact; but even where it appears from the extrinsic evidence that the matter was 
properly within the issue controverted in the former suit, if it be not shown that 
the verdict and judgment necessarily involved its consideration and determination, 
it will not be concluded. 

You may search all tbe books that have ever been written upon 
the subject from the earliest to the latest, and you will never get be¬ 
yond or any further than that upon this subject. That is the rule 
by which I shall try this case so far as I am concerned before the 
Senate. 

Mr. President, the comparison limps when it is said this is like a 
proceeding in court. Of course it is like a proceeding in court. Any 
issue between persons, any issue in the churches, any issue in any tri¬ 
bunal, in any committee, is to a certain extent like a trial in court. 
But here a fundamental error lurks and runs through the case from 
the beginning. This is not a mere contest between Kellogg and 
Spofford for the seat as a Senator from Louisiana as would be, sir, 
between you and myself a suit in equity for a specific performance 
or a suit at law in an action of ejectment. Let us see if it is, upon 
some of the simplest and commonest principles that run through the 
practice of the courts. 

Suppose the sitting Senator, Mr. Kellogg, hadfailed to make any re¬ 
sponse or to take any notice of the application on the part of Mr. Spof¬ 
ford. If it is strictly and in every sense a legal proceeding the Senate 
could have defaulted Kellogg, rendered a judgment by default, and 
seated Spofford. That no man will contend could be done, because 
whether he appears to defend or not the Senate’s duty is, under the 
Constitution, to ascertain who was elected. Further, suppose Kellogg 
and Spofford had agreed and filed a written stipulation, as in courts of 
justice, that a judgment should be rendered in favor of Spofford 
against Kellogg, the Senate could not have rendered the judgment. 
You cannot default an American constituency in that way. You can¬ 
not stipulate the rights of an American constituency away in anv 
tribunal. Suppose the Senate, progressing in this inquiry, finds that, 
neither was elected, which it might do very well, and should award 
the seat to some man in Louisiana who got only one vote, if therA 
was such a one. Those statements illustrate the futility of att,emot¬ 
ing to assimilate this throughout to a proceeding in court.. 

In this connection I will state another matter. Suppose the Sen at 


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should ascertain that neither of these men was elected, as I stated 
just now, and in two mouths from this time it should ascertain by- 
testimony competent that it had committed a mistake. Louisiana 
stands now, after doing all she can to be represented, disfranchised 
of a Senator. Has not the Senate power to correct that error and 
bring in'the person who was elected? Most confessedly. 

Further than that, the senate of Pennsylvania in 1871, upon a con¬ 
test between two persons claiming a seat in that body, decided that 
the sitting member could vote upon the issue of keeping his seat. 
After extensive argument they came to that decision. The sitting 
senator did vote and kept his seat by his vote. That case is found in 
Smull’s Legislative Hand-Book, page 542, and in the senate journal 
of Pennsylvania, (1871,) page 127. If this had been a mere contest for 
a seat as a replevin for a horse, of course the man could not be a judge 
in his own case. So the similarity breaks down again in an essential 
feature. 

In Stockton’s case in this very body, after he had cast his vote and 
a resolution was offered by Mr. Sumner to exclude that vote, it was 
contended by no less eminent persons than Reverdy Johnson and Mr. 
Hendricks that he could vote and was entitled to cast his vote, be¬ 
cause believing that he was elected he could not trifle away the rights 
of his constituents in that way. It was the right of his constituents 
that he was representing here, and not his own right of property in 
the seat, to the mere compensation. It is true the Senate decided at 
last upon a vote that he was not entitled to vote; but when such dis¬ 
tinguished gentlemen as those who contended that he could vote took 
that position, the Senate had better pause and count before they say 
this is as a suit between A and B for a pair of pantaloons in a court 
of justice. This cuts both ways, understand. It is like the old jute 
doctor’s bark. If you stripped it up the tree, it would have one effect 
on you; if you stripped it down the tree it would have a contrary ef¬ 
fect. It came very near being settled, within four votes, in the Sen¬ 
ate that Mr. Stockton was entitled to vote. If it had been Mr. Stock¬ 
ton’s mere right to that seat that was involved, he never would have 
got a vote saying he could cast his vote in that issue. The parlia¬ 
mentary rule that excludes a man from voting because he is inter¬ 
ested, is because of his individual, personal interest, uncombined and 
unconnected with that of others. Whenever I vote a dollar for a pub¬ 
lic building in the city of Little Rock, the rule is run out in its full 
length. If it were a measure to benefit my property alone $10,1 could 
not vote on it. It benefits the property of my neighbors as well as mine, 
and therefore I am competent to vote, but if it was to put $500 in my 
own pocket direct, I could not vote on it. That is the distinction. 
If it was a mere case at law, a legal contest for a right of j>roperty, 
neither Mr. Hendricks, nor Mr. Reverdy Johnson, nor Mr. Garrett 
Davis, nor any of those gentlemen who contended for that right would 
have asserted it on this floor or anywhere else under the sun. 

Mr. President, it comes down to a naked proposition every time for 
the Senate to deal with, just as a court must deal with it w'hen it is 
addressed to it, as to whether its prior j udgment is conclusive, whether 
its prior judgment is res adjiulicata or not. lies adjudicata, all know, 
is a technical expression and a court expression. It runs through all 
the business of life, private controversies and public controversies, 
not merely for economy but for quiet and peace, for the end of some¬ 
thing when it is in issue. The Departments are not judicial of course. 
Under the Constitution those administering them are called the heads 
of Executive Departments, and they are called Executive Depart- 


9 


ments. When A, as Attorney-Genera], decides an issue before him, his 
successor cannot come in and overturn that. The Departments have 
decided that repeatedly; the Attorneys-General have so decided; the 
Supreme Court in 15 Peters, The United States vs. Bank, have deci¬ 
ded the same. It is a rule of law for the purpose of quieting contro¬ 
versies and for the peace and for the order of society, no more in a 
court possibly than anywhere else, but when it is carried to the ex¬ 
tent that it is claimed here, it becomes preposterous, with all due 
respect to those who have contended for it. The examples given 
by the Senator from Wisconsin himself do not tally with the rule that 
he laid down—with the precept that he gave. 

Patrick O’Hara was a most excellent citizen of Chicot County, in 
the State of Arkansas. He got on a steamboat to take a trip to New 
Orleans. Going down the river one night his boat struck a snag and 
the boiler burst and the boat blew up. Many of the passengers were 
killed, and it was reported to the county of Chicot that O’Hara was 
dead. The seven years’ presumption in the case of the absence of a 
person, that being the statute in Arkansas, prevailed and O’Hara was 
reported dead to the probate court. Administration was granted upon 
his estate. It went through a due course of administration, and finally 
they were about to take the order of distribution; and as the order 
was about to be entered, Patrick O’Hara came into the court and ad¬ 
dressing the judge said, “Judge, I know you well; here I am ; I want 
my estate.” The judge said “Yes, Patrick, I know you very well, 
but you are as dead as a door-nail.” Patrick said, “You know me, 
judge; I have worked for you often; here I am, a living man.” “No, 
Patrick,” said he, “ the record says you are dead; the record cannot 
lie;” and the judge proceeded gravely to distribute his estate and 
Patrick left the court-house a sadder man, if he was not a wiser man. 

That is the extent of the plea as offered here by the Senator from 
Wisconsin, whose example as I said before, goes away beyond the pre¬ 
cept which he lays down by which to test this doctrine. 

The question then resolves itself always into this: It is a plea ad¬ 
dressed to the tribunal itself, and it is for the tribunal to say whether 
or not it will disturb this order of things that it has established. But 
at all times, upon every occasion, if any material fact is omitted from 
the verdict and judgment that could have been brought in before, 
the case is not concluded in any court or in any tribunal. That is 
the decision of our courts. 

Mr. President, concede, if you please, that the question of the legal¬ 
ity of the Legislature was decided; concede, if you please, that the 
possession of the qualifications attached to Kellogg that the Consti¬ 
tution prescribes was decided; there is one question that has not been 
determined in this cause, there is one question that has not been 
touched in this cause, which is higher and above all these, the recur¬ 
rence of which every day and every hour of the day makes the Senate 
a law unto itself to "say whether a man who sits here has come to the 
Senate with pure hands and is worthy to sit here as an American 
Senator. When the committee a year ago asked for leave to take fur¬ 
ther testimony, that proposition was combated upon the idea that 
Mr. Kellogg and Mr. Spofford, like two men contending for a horse 
in a court, were estopped, and that the prior judgment was conclusive. 
Upon page 1082 of the Congressional Record, Forty-sixth Congress, 
first session, I find that I said on the 6th of May, 1879, after propound¬ 
ing a question to the Senator from Massachusetts, [Mr. Hoar :] 

Mr. President, I did not ask the question I propounded to the Senator from 
Massachusetts with any view of engaging him in an argument on his view of this 


10 


case, nor in fact with any positive conviction in my own mind as to what answer 
should be given. I have had a sort of rough idea in my head about this matter, 
that there are three parties possibly to the contest, two persons claiming the seat, 
and the third party the State of Louisiana, which has a right to be properly and 
legally represented. In reading the proceedings before the committee, as far as 
they have been printed, I find that Mr. Spofford makes certain charges against Mr. 
Kellogg and Mr. Kellogg makes certain charges against Mr. Spofford • and if in 
the course of this investigation the committee shall find that really—and when I 
say really I mean legally—neither one of these gentleman was elected, they might 
possibly introduce a resolution declaring the seat vacant, and then let the State of 
Louisiana elect a Senator. This idea I gathered from the proceedings; and there¬ 
fore I asked the Senator with perfect good faith the question whether in his judg¬ 
ment, according to the pleadings and the issue made here, there could be under any 
state of the case a judgment rendered that the seat was vacant. 

Then I gave notice that probably I would offer this amendment: 

Provided, That this resolution— 

That is the resolution to take testimony— 
shall not be construed as determining in any way the question whether Kellogg’s 
right to such seat is adjudicated. 

The Senator from New York [Mr. Conkling] responded to that 
proposition, “ I am not denying that there was anything in it.” Now, 
let me go further. On May 7, page 1109, it will be seen that I did 
not entertain this idea alone : 

Mr. Edmunds. Before the vote is taken on the amendment proposed by the Sen¬ 
ator from Massachusetts, which is to strike out the whole of the resolution and 
insert a different proposition, I wish to offer an amendment to the text of the res¬ 
olution, which I believe is in order under the rule, by adding after the word “peti¬ 
tion,” in line 6 of the printed resolution, these words: 

“ So far only as relates to any charge in said petition of personal misconduct on 
the part of said Kjellogg, which may render him liable to expulsion or censure.” 

So that the instruction part of the resolution shall read: 

It is seen that not only myself entertained that idea, but tbe Sen¬ 
ator from Vermont thought that possibly there might arise a question 
here a little higher, a little more important, and a little more grave 
than a mere right to sit in the Senate as between two persons. 

Then, at the conclusion of that debate upon page 1121 of the same 
book, the sitting member said if the question of bribery was the one 
which they were after he courted and begged for an investigation. 
He claimed that his hands were clean, and he asked for the investiga¬ 
tion upon that point. 

Further, when the vote was taken to admit Mr. Kellogg, the Sen¬ 
ator from Alabama who sits nearest me [Mr. Morgan] offered a reso¬ 
lution to this effect, which can be found on the page I read from a 
little while ago : that this action would not preclude the Senate from 
inquiring into the ways and means of the procuring of this seat by 
the sitting member. He made some few remarks upon that resolution. 
The Senator from New York [Mr. Conkling] stated that no person 
could claim it did ; that the resolution of the Senator from Alabama 
would add nothing to it nor take anything from it; that that inquiry 
stood here all the time staring, as it were, the Senate in the face from 
which the Senate could not shrink and which the Senate could not 
evade as a duty. Now, we have got so far that whatever res adjudi- 
cata may be contained in this case, it does not embrace and include 
that point. 

When Mr. Spofford filed his petition for a contest, to be found on 
page 5 of the report of the committee, I refer to the second petition, 
the one that he filed in March, 1879, he sets out what I especially de¬ 
sire the Senate to bear in mind: 

Petitioner further represents that he ever has been and still is ready to furnish 
evidence to establish the five specifications upon which he was not permitted to 


11 


take proof heretofore, and particularly evidence of the direct and active interfer¬ 
ence of said Kellogg in the preparation of illegal complaints or protests against 
polls of which he had no knowledge. 

Tliese five points as stated by the Senator from Wisconsin [Mr. 
Cameron] do not embrace directly or indirectly, either approxi¬ 
mately nor remotely, any question of the corruption of the sitting 
Senator in obtaining votes for the seat that he occupies. They relate 
to altogether and entirely different propositions and different sub¬ 
jects. Then he proceeds: 

Petitioner further represents that since the contest aforesaid and very recently 
he has discovered new and material evidence to prove that the election of said Kel¬ 
logg was null and void— 

Why ?— 

by reason of improper, illegal, and corrupt influences exerted by him in person to 
bring abput his own election as Senator. 

There is a distinctive allegation in the new suit filed upon which 
the Senate has never passed before, upon which in the former issue 
there could have been no trial, because it was expressly ruled out 
upon the very face of the papers, and could not upon the presumption 
stated by the Senator from Alabama the other day arise in the court 
at all without a distinct allegation to bring the attention of the com¬ 
mittee to it. 

This inquiry could be brought to the Senate by any person. If Mr. 
Spofford had remained as silent at home as the tombs themselves, 
any respectable gentleman could have sent a paper here and had this 
inquiry instituted upon that—the governor, the attorney-general, 
any officer, any citizen. We have just had a long inquiry as to my 
particular friend from Kansas, [Mr. Ingalls,] whom the Committee 
on Privileges and Elections have most triumphantly and gladly to 
us all acquitted, not upon any contest, not upon any person asking for 
his seat, but upon a charge of personal improper misconduct in pro¬ 
curing his seat, and that charge brought hereby individual memorial¬ 
ists. 

Here is a distinct allegation in this petition which shows, if my 
position is correct, and I do not think there can be a successful com¬ 
bating of it, that the voice of the State is here asking that we shall 
inquire as to the purity and as to the cleanly means by which the per¬ 
son sitting here arrived in this body. The protection of this body 
itself over such a matter never sleeps, but the power is always alive, 
and such an allegation is always to be heard. There is an allegation 
that was not in the former suit; no inquiry was ever made as to that 
in the former case. Hence the decision in 5 Wallace rescues that 
from the inquiry before and brings it here a distinct matter for the 
Senate to pass upon. 

If the allegation of bribery is made out in this case, the purchasing 
of the seat or the contributing of the means to purchase the seat, 
what is the law upon that subject ? I speak by authority higher 
and better than my own when I say it goes to the very election itself. 
It goes back to the title, to the beginning of the title. The creden¬ 
tials are nothing but paper at last that evidence a title somewhere, 
just as your deed to your homestead is not your title but is the evi¬ 
dence of your title. If bribery is made out against the sitting mem¬ 
ber a majority vote, according to my interpretation of the Constitu- 
tution, can vacate his seat, for, as McCrary on Elections says, where 
there is bribery there is a foul election, and where there is a foul elec¬ 
tion there is no election. But I beg leave to read to the Senate a few 
passages from the report of Mr. Morton in a similar case on this point. 


It says all that I desire to say upon this point, and it was a majority 
report from the Committee on Privileges and Elections in the case of 
Caldwell, when that committee was composed of Messrs. Morton of 
Indiana, Carpenter of Wisconsin, Logan of Illinois, Alcorn of 
Mississippi, Anthony of Rhode Island, Mitchell of Oregon, Bayard 
of Delaware, and Hamilton of Maryland, the latter two the only 
democrats on the committee. The conclusion of that report made by 
Mr. Morton is: 

By the Constitution, each House of Congress is made the judge of the elections, 
returns, and qualifications of its members. 

If a person elected to the Senate has not the constitutional qualifications, or if 
the election is invalid by reason of fraud or corruption, the jurisdiction to exam¬ 
ine and determine is expressly vested in the Senate. 

Another clause of the Constitution authorizes the Senate to expel a member by 
a two-thirds vote. The causes for which a Senator may be expelled are not lim¬ 
ited or defined, hut rest in the sound discretion of the Senate. 

It has been a subject of discussion in the committee whether the offenses of 
w T hich they believe Mr. Caldwell to have been guilty should be punished by expul¬ 
sion or go to the validity of his election, and a majority are of the opinion that they 
go to the validity of his election and had the effect to make it void. 

Now I will ask to detain the Senate at some length by having the 
Secretary read the speech of Mr. Morton on that occasion, commenc¬ 
ing on page 31 of the Congressional Record of the special session 
of the Senate, Forty-third Congress, 1673. 

The Secretary read as follows : 

Mr. Morton. Mr. President, this investigation originated in the Legislature 
of Kansas. A committee was appointed there to examine into the circumstances 
of Mr. Caldwell’s election. The volume containing the testimony was transmitted 
to the Senate of the United States by virtue of a joint resolution of the Legislature 
of Kansas, which I will now ask the Secretary to read. 

The Chief Clerk read as follows : 

“ Resolved by the house of representatives , (the senate concurring .) That a printed 
certified copy of the report and evidence of the investigating committee appointed 
to investigate charges of bribery in the senatorial elections of 1867 and 1871 be sent 
to each of our Senators in Congress, and that a copy of said report and evidence he 
placed in the hands of the governor of this State, with the request that he forward 
the same to the Yice-President of the United States, asking him to lay the same 
before the Senate of the United States for their information.” 

Mr. Cameron. AVill the Senator from Indiana tell me the date of that document 
from the Legislature of Kansas ? 

Mr. Morton. That resolution, I think, was passed April 4, 1872. I now read an 
extract from the Globe of April 8, 1872, when this resolution was referred to the 
Committee on Privileges and Elections of the Senate. The Senator from Kansas 
[Mr. Caldwelll said: 

‘ ‘ I desire to state that I also have received the report of the investigation referred 
to. I had been expecting that report for some time. I believe it was made up in 
Eebruary, and I have repeatedly inquired of the Chair whether he had received it 
or not. I am glad to know that it is here, and I desire that it he referred as my 
colleague has suggested, so that we may have speedy action on it.” 

I read that simply for the purpose of showing that Mr. Caldwell submitted him¬ 
self in this matter to the jurisdiction of the Senate. 

Mr. Caldwell submitted a printed argument to the committee, which is pub¬ 
lished with the evidence and the report, in which he made a general denial of the 
existence of any satisfactory evidence that he, or his friends with his knowledge, 
had bribed any members of the Legislature of Kansas to vote for him for Senator, 
hut entered into no discussion of the testimony. In the argument of the law he 
placed his defense upon the following grounds: 

First, that his admitted transaction with Mr. Carney was a private affair be¬ 
tween citizens, and was not denounced as illegal by any statute, State or Federal, 
and about which the Senate has no legal right to inquire. 

Secondly, that bribery of members of the Legislature to vote for a candidate is 
not made a criminal offense by any statute of the United States, and that a mem¬ 
ber of the Senate cannot be unseated for bribery, because he cannot he indicted 
and punished for it in a court. 

Thirdly, that the question of bribery in the election of a Senator can, under no 
circumstances, be inquired into by the Senate of the United States, but that the 
right to make investigations belongs only to the State, and that the Senate is con- 


13 


•eluded by his commission from the State from all inquiries, except as to whether 
he possesses the qualifications required by the Constitution of the United States. 

Fourthly, that the Senate has no power to expel a member for any cause arising 
before he became a member of the body. 

A summary of the evidence and of the conclusions to be drawn from it is made 
in the report, and an examination of the whole volume of the testimony, which is 
upon your tables, will show that the statements and conclusions in the report are 
not fully sustained, but are in a moderate form, and might have been made much 
stronger in many respects. Ho impartial man can read that evidence through 
without coming to the conclusion beyond a reasonable doubt that the transactions 
with Clarice and Carney are of the precise character stated in the report, and that 
the charges of direct bribery of members of the Legislature, and that Mr. Cald¬ 
well’s election was secured by money, are completely sustained. 

On the first point in the legal defense of Mr. Caldwell, I quote the following ex¬ 
tract from his argument: 

“ I am charged with having procured an election to the Senate by the use of 
money to induce opposing candidates to retire, and by the use of money and other 
improper means to induce members of the Legislature to vote for me. The first 
of these charges, so far as it relates to the retirement of Thomas Carney, stands 
admitted upon the record; but I insist that that was a private transaction between 
citizens, neither of whom occupied any official position, and was not denounced as 
an illegal act by any statute, State or Federal, and was one concerning which the 
Senate has no legal right or power to inquire, as I shall subsequently endeavor to 
show.” 

If the Senate cannot inquire into the circumstances attending the election of its 
members, whether such election was procured by bribery, corruption, or other 
matter impairing the freedom of elections, such inquiry cannot be made anywhere. 
It is true the State may investigate these charges, as was done in this very case, 
but such investigation amounts to nothing, unless it may be for the information 
of the Senate of the United States. 

The Constitution provides that “each House shall be the jndge of the elections, 
returns, and qualifications of its own members.” 

The Senate is authorized to judge of three things in regard to its members, their 
qualifications, returns and elections. 

First. It may inquire in regard to his qualifications, whether the member was 
thirty years old, bad been nine years a citizen of the United States, and was an 
inhabitant of the State. 

Secondly. Whether the returns of the election are in due form, and show an 
election by the lawful Legislature of the State, certified as required by law. 

Thirdly. Whether the election was couducted according to law, and was free, 
or attended by circumstances that would make it invalid, such as bribery, fraud, 
or intimidation. 

The Senate has no power to inquire whether individual members of the Legisla¬ 
ture have been lawfully elected, because each house of the Legislature is invested 
with like power to judge of the election and qualifications of its own members. It 
is contrary to the policy of the law to permit a court to inquire whether a statute 
properly certified was enacted through bribery, but such an inquiry bears no 
analogy to the question whether the Senate may inquire as to the election of its 
members, for which purpose it is vested with express power. 

The power of the State Legislature is exhausted when it has elected a Senator, 
and it has no right at the same or at a subsequent session to annul its action from 
any cause and hold a new election. If the State Legislature could afterward annul 
an election of Senator and hold a new one, membership in the Senate would not be 
under the control of the Senate, but of the several States, and the Senate would 
not be the judge of the election of its own members. And if there be no power 
either in the Senate or in the State Legislature to inquire whether an election has 
been procured by bribery or fraud, then the evil would be irremediable, however 
gross and wicked the instance; and if such be the position of the Senate, it is per¬ 
haps the only legislative body in the civilized world in such a helpless,condition. 

In the case of Asher Eobbins, from Ehode Island, referred to by Mr. Caldwell, 
the only question was whether he had been elected by the lawful Legislature, and 
there was no question of bribery or misconduct in the case, and the reference to 
bribery in the report of the committee was only by way of argument. 

To show in this connection the real character of the transaction with Mr. Carney, 
which Mr. Caldwell says is “ admitted upon the record,” I quote thefollowing ex¬ 
tract from the report of the committee : 

“It is testified by Mr. Len. T. Smith, a former business partner of Mr. Cald¬ 
well, his active friend at the time of his election and during this investigation, 
that he made an agreement with Thomas Carney, of Leavenworth, by which, in 
consideration that Mr. Carney should not be a candidate for United States Senator 
before the Legislature of Kansas, and should give his influence and support for 
Mr. Caldwell, Mr. Caldwell should pay him the sum of $15,000, for which amount 


14 




notes were given, and afterward paid, at the same time taking from Mr. Carney a 
written instrument, in which he pledged himself, in the most solemn manner, not 
to be a candidate for the office of Senator in the approaching election. 

“ This instrument is in the words following: 


‘“I hereby agree that I will not under any condition of circumstances be a can¬ 
didate for the United States Senate in the year 1871, without the written consent 
of A. Caldwell, and in case I do, to forfeit my word of honor hereby pledged. I 
further agree and bind myself to forfeit the sum of $15,000, and authorize the pub¬ 
lication of this agreement. 

‘“THOS. CARPET. 


“ ‘ Topeka, January 13, 1871.’ 


“ Mr. Smith’s testimony is fully corroborated by that of Mr. Carney, who admits 
the execution of the paper, the making of the arrangements, the taking of the notes, 
and the subsequent receipt of the money. The notes fbr the money were signed 
by Mr. Smith, but paid by Mr. Caldwell; and one of them, for $5,000, w r as made 
contingent upon Mr. Caldwell’s election. The substance of the whole agreement, 
only a part of which was expressed in the writing, was that Mr. Carney should not 
be a candidate for the Senate against Mr. Caldwell, that he should use his influence 
for Mr. Caldwell, go to Topeka, meet the Legislature, and do all he could to secure 
his election.” 

The committee have recommended to the Senate the adoption of the following 
resolution: 

“ Resolved , That Alexander Caldwell was not duly and legally elected to a seat 
in the Senate of the United States by the Legislature of the State of Kansas.” 

The ground upon which bribery and intimidation invalidate an election is that 
they impair “ the freedom of elections.” Rogers, in his Treatise on the Law and 
Practice of Elections, speaking of the action of the House of Commons, says: 

“ Bribery, essentially affecting the freedom of elections, they took cognizance of, 
and punished both the electors and the elected offending.” 

Again: 

“ But numerous instances have not been wanting in more modern times, in which 
the court of king’s bench have, by the rigor of their punishments, vindicated the 
freedom of elections. Informations and indictments at the common law, as well 
as indictments on the statute of 2 George II, chapter 24, have there been prose¬ 
cuted, not only by private individuals, but by the attorney-general, by order of 
the House of Commons. To bribe a voter is not only an infringement of parliament¬ 
ary privilege, it is more, a high misdemeanor and a breach of the common law. 

“The opinions of the wisest and most honest statesmen embodied in the resolu¬ 
tions and standing orders of the house had been set at defiance, and the first and 
best principle of the constitution, the freedom of election, was daily and unblush- 
ingly violated.” 

Cushing, in his work on the Law of Legislative Assemblies, says : 

“ The great principle which lies at the foundation of all elective governments, 
and is essential indeed to the very idea of election, is, that the electors shall be free 
in the giving of their suffrages. This principle was declared by the English Par¬ 
liament in regard to elections in general, in a statute of Edward I, and with regard 
to elections of members of Parliament in the Declaration of Rights. The same 
principle is asserted or implied in the constitutions of all the States of the Union. 

“ Ereedom of elections is violated by external violence, by which the electors are 
constrained, or by bribery, by which their will is corrupted; and in all cases where 
the electors are prevented in either of these ways from the free exercise of their 
right, the election will be void, without reference to the number of votes thereby 
affected.” 

Again: 

“ The freedom of election may also be violated by corrupting the will of the 
electors by means of bribery, as well as by intimidating or preventing them by 
external violence from exercising the right of suffrage.” 

Again, speaking of bribery, he said : 

“ It is an offense of so heinous a character, and so utterly subversive of the freedom 
of election, that when proved to have been practiced, though in one instance only, 
and though a majority of unbribed voters remain, the election will be absolutely 
void.” 

Whatever impairs the freedom of elections is illegal and against public policy, 
and makes the election void. Intimidation and bribery are not the only practices 
that impair the freedom of elections. They are only instances, perhaps the most 
common heretofore, but may not be hereafter. There is no difference in principle 
between buying votes and buying influence. To employ persuasion and argument 
to secure votes is legitimate ; but buying off opposing candidates goes much further. 
That is not only the purchase of influence, but of that power which a man has over 
his particular friends, springing from political and social relations. We know from 
observation what power a political leader has over his friends and followers who have 




15 


been for years devoted to bis political fortunes—bow they enter into bis resent¬ 
ments and attachments, and when be is forced off the stage, bow bitterly they feel 
toward those who have forced him off, and bow naturally they go with him to the 
support of another who is represented as bis friend. 

It is a matter of frequent occurrence that the result of senatorial and other elec¬ 
tions is determined by the withdrawal of a candidate and casting his influence in 
favor of another, thus transferring a body of friends sufficient to secure his elec¬ 
tion. This is of more frequent occurrence than bribery, and generally far more 
effective. It is also far less troublesome and dangerous than the bribery of indi¬ 
vidual voters. The purchasing party has but one man to deal with instead of 
many, and that man, to have friends who are worth buying, must be a man of some 
character, and equally interested in keeping the secret. While such an operation 
is more effective and dangerous than the bribery of individual voters, it also in¬ 
volves more turpitude. The vendor of his friends and influence is betraying 
and making merchandise of those sentiments of attachment and devotion to him 
which are honorable to human nature, and serve to elevate and relieve political 
contests from sordid selfishness and ambition, and the purchaser knows he has ob¬ 
tained votes under false pretenses, and that he has bought them just as effectually 
as though he had paid the bribe to them, although the purchase-money has been 
paid to another. Such a transaction is within the very definition of bribery as 
given by Sheperd in his Treatise on Elections, page 94: ~ 

“ Bribery at an election is the creation or the attempt to create an undue influ¬ 
ence over the disposition of suffrages by a lucrative consideration, or a voluntary 
subjection to such influence.” 

It is an “undue influence ” over suffrages obtained for a lucrative consideration 
paid to another. As stated in the report: 

“ If it were legitimate for Mr. Caldwell to buy off Mr. Carney as a candidate, 
it was equally legitimate to buy off all the other candidates, and have the field to 
himself, by which he would exert a quasi coercion upon the members of the Leg¬ 
islature to vote for him, having no other candidate to vote for.” 

It is in the broadest sense 1 ‘ undue influence ” over suffrages, exerted for a “ lucra¬ 
tive consideration,” and none the less so because the persons upon whom exerted 
were ignorant of the character of the transaction. It is bribery in the wholesale, 
rather than retail, for the bribe is paid to a man who, from his peculiar relations 
to a number of voters, can in all probability control their action. 

This sort of “ undue influence ” was recognized in England as being more ex¬ 
tensive and more dangerous to the freedom of elections than the purchase of indi¬ 
vidual votes. I quote again from Sheperd, on page 97: 

“Besides the practice of purchasing individual votes, there sprung up a system 
of corruption far more extensive, in which the commanding influence in a borough 
was transferred, either for a sum of money paid down at once, or, with a more ac¬ 
curate calculation of traffic, for an annual payment during the continuance of Par¬ 
liament ; the sitting member thus purchasing the return of him who had previ¬ 
ously purchased the power of returning. To repress this practice the 49 George 
III, chapter 118, was passed, by which it is made highly penal to enter into any 
pecuniary engagement for procuring the return of a member of Parliament.” 

This is but another definition of a practice which impairs the freedom of elec¬ 
tions, and invalidates an election upon the same principle as bribery of the indi¬ 
vidual voters. 

The principles of the common law are applicable in all civil matters touching the 
validity of elections or the tenure of office, and it is a well-established principle of 
the common law that whatever impairs “ the freedom of elections ”is illegal, against 

S ublic policy, and will make the election void. Particular forms in which this is 
one, such as bribery and intimidation, are punishable by statutes in England and 
nearly all the States; and in England the further form of purchasing the influence 
of persons who are not candidates themselves, for the return of members of Parlia¬ 
ment. But the absence of a statute punishing these several practices impairing 
the freedom of elections in nowise affects the operation of the general principle 
touching the validity of elections. 

Sheperd, in his treatise, says : 

“ The bribery act makes no mention of any parliamentary disqualification affect¬ 
ing a member’s seat; the effect, therefore, of an act of bribery not within the words 
of the treating act of 7 William III, chapter 4, is in that respect determined by the 
law of Parliament as follows: ‘ Bribery by a candidate, though in one instance 
only, and though a majority of unbribed votes remain in his favor, will avoid the 
particular election.’ ” 

Mr. Carpenter. If it will not annoy my friend, I should like to ask him at that 

J oint, whether he has any common-law authorities laying down that doctrine which 
o not refer to and rest upon the statutes of England. 

Mr. Morton. I hope my friend will allow me to get through with this portion of 
my speech without interruption. 

Mr. Carpenter. I beg pardon. The Senator asserted that that was the common- 
law doctrine, and I simply wished to know whether he had found any cases. 


16 


Mr. Morton. I have quoted several very high common law English authorities 
on the subject. It has never been held in England or this country that the effect 
of bribery, in making an election void, depended upon the existence of a statute 
punishing it as an offense. On the contrary, as stated by Sheperd, it invalidates 
an election by operation of the ancient law of Parliament. 

But if the transaction I am considering was not technically bribery, yet that is 
immaterial, for it is “undue influence,” even more dangerous to the freedom of 
elections than the purchase of individual votes, and partakes of the same general 
nature, for it is begotten by a corrupt money consideration. In England bribery 
was held to invalidate the election of a member of Parliament long before there was 
any statute punishing bribery, upon the general principle that it impaired the free¬ 
dom of elections, showing that its effect, in invalidating an election, does not depend 
upon the fact that it has been made punishable by statute as a penal offense; and 
so a corrupt contract with an opposing candidate for the Senate, by which he is to 
withdraw from the canvass and cast his influence for another, must be held to have 
the same effect in invalidating the election as though the transaction was made 
punishable as a criminal offense. 

Bribery may be said to bear the same relation to an election that fraud does to a 
contract, but if there be a difference it is that it is more fatal, and that a smaller 
ingredient will have the effect to destroy the life of the election, because the purity 
and freedom of elections are vital to the existence of every elective form of govern¬ 
ment. 

Said the court of king’s bench, in Ilex vs. Pitt, (Burrows, 1338 :) 

“Bribery at elections of members of Parliament must always have been a crime 
at common law and punishable by indictment or information.” 

There are, however, no traces of any prosecution for bribery at elections till 
after the legislature inflicted particular penalties uj>on it. 

Bogers, in the treatise referred to, says: 

“Bribery, as we have seen, had always been a misdemeanor at common law, and 
a violation of the privilege of Parliament; but the above statute [the bribery act] 
armed courts of law with, new and extraordinary powers to attack the growing 
evil by attaching a penalty of £500 on every conviction of an offense against its 
provisions, and by disqualifying the offender from ever again voting in any elec¬ 
tion for members of Parliament.” 

Sheperd, in his Treatise on Elections, says, speaking of bribery: 

“ Though it was always an offense at common law, it is thought that no prosecu¬ 
tion for this species of bribery took place until the bribery act, for which the jeal¬ 
ousy of the Commons in regard to their privileges sufficiently accounts. As soon, 
however, as the Commons began to rise in importance, and a seat was considered 
of sufficient political value to be purchased, they were not slow to discover and 
attempt themselves to repress the pernicious consequences of such corruption.” 

The general policy and provisions of the laws of England in regard to corruption 
in elections are embodied in the constitution and laws of all the States, and bribery 
made to invalidate every election into which it enters. The doctrine that the brib¬ 
ery of a single voter will vitiate an election, although the candidate may have a 
majority of unbribed votes, is a necessary consequence of the principles I have 
considered, and indispensable to the protection of the freedom of elections. If the 
candidate who has been fraudulently elected is entitled to maintain his seat, unless 
it can be shown that his whole majority was corruptly procured, the operation of 
the principles I have considered will in most cases be defeated, for although he be 
shown to be guilty of corruption and unworthy of a seat in any legislative body, 
yet he has the chances largely in his favor that it cannot be shown to have ex¬ 
tended to his whole majority. Corruption in an election maybe compared to a 
drop of fatal poison injected into the human system, which circulates into every 
part and destroys every function. The man who has purchased one vote has 
shown himself willing to purchase all, and that his corrupting influence has been 
limited only by his means or his necessities. 

The Constitution declares that “ each House may determine the rules of its pro¬ 
ceedings, punish its members for disorderly behavior, and, with the concurrence 
of two-tliirds, expel a member.” The causes for which a Senator may be expelled 
are not limited or defined, bat rest in the sound discretion of the Senate. The 
position taken by Mr. Caldwell, that a Senator can be expelled only for causes 
arising subsequent to his admission, is not sustained by the reading of the Con¬ 
stitution, by any rule of construction, or by authority. 

In this case, the Senate would have the right to proceed either way, if it finds 
Mr. Caldwell guilty of the charges preferred against him, or any of them: first, 
by declaring his election invalid, which would require only a majority vote, or by 
a resolution of expulsion, which would re«pire a two-thirds vote. 

The power of expulsion is absolute. It has the definition of an absolute power, 
for it is not limited in the clause creating it, and there is no tribunal by which its 
exercise can be reviewed or reversed. It should be exercised with sound discre¬ 
tion, and the security against its abuse consists in the fact that it requires a two- 
thirds vote. It should undoubtedly be exercised within certain limits and under 









17 


certain moral restraints; but eaeli case, perhaps, would depend upon its own pe¬ 
culiar character. 

As it is a power to be exercised within the sound discretion of the Senate, that 
exercise may be for causes arising before the election, as well as after, and for any 
cause which in the sound discretion of the Senate would make it improper for a 
man to continue to be a member of the body. 

It is admitted that the Senate may expel a member for a crime committed dur¬ 
ing his membership, although it has no connection with his official duties or his 

E osition of Senator, upon the ground that his presence in the Senate degrades the 
ody, and that he has shown himself unworthy of public trust and unfit to be asso¬ 
ciated with honorable men. But do not all these reasons exist with equal force for 
expulsion where the crime was committed before admission to the Senate, but was 
not discovered until afterward ? 

It has been argued that if the Legislature of a State elect a known criminal to 
the Senate of the United States, it is their business, and the State has a right to be 
represented by a criminal if she desires to be, and the Senate must receive whom¬ 
ever the State sends as Senator. 1 dissent from this doctrine. The Senate has a 
right to protect itself against the admission of a criminal, although the Legislature 
electing him was indifferent upon the subject or chose him for that very reason. 
The propriety of exercising the power might be more doubtful if the criminality 
of the member were known at the time of his election, for it might be argued that 
the members of the Legislature did not believe the charge to be true, or that the 
offense was mitigated or had since been condoned. 

The power to expel a member is incident to every legislative body, because it is 
necessary to its protection and character, and this-power exists, although the con¬ 
stitution or law creating the body does not confer it in terms. The former consti¬ 
tution of Massachusetts contained no clause authorizing either house of the Legis¬ 
lature to expel a member for any cause. But it was held by the supreme court of 
that State, Chief-Justice Shaw, one of the ablest jurists who ever sat upon the 
bench in this country, delivering the opinion, that the power of each house to ex¬ 
pel a member existed as a necessary and incidental power, and that each house 
must be the sole judge of the exigency which may justify and require its exercise. 
I quote from the decision, which will be found oil page 473, in the third volume of 
Gray’s Massachusetts Iteports: 

“ The power of expulsion is a necessary and incidental power to enable the house 
to perform its high functions, and is necessary to the safety of the State. It is a 
power of protection A member may be physically, mentally, or morally wholly 
unfit; he may be afflicted with a contagious disease, or insane, or noisy, violent, 
and disorderly, or in the habit of using profane, obscene, and abusive language. 

“ If the power exists, the House must necessarily be the sole judge of the exi¬ 
gency which may justify and require its exercise. 

“As to the law and custom of Parliament, the authorities cited clearly show that 
the jurisdiction to commit, and also to expel, has long been recognized, not only in 
Parliament, but in the courts of law, for the purpose of protection and punish¬ 
ment. I here confine myself strictly to the law of personal privilege from arrest. 
There has been much debate upon abuse of power and excess of claim of privilege, 
but the power to commit or expel has been uniformly admitted.” 

But the reasoning as to the propriety of expulsion for an offense committed be¬ 
fore admission to the Senate, and wholly disconnected with the election, falls to 
the ground when you come to consider a "case where the offense has been commit¬ 
ted in connection with admission to the Senate; where it is the very means by 
which admission is obtained; where the offense is the stepping-stone to the Senate. 

The distinction is radical between such a case and that of an independent crime 
committed long before the election and having no connection with it whatever. 
In the latter case the offense goes only to the man’s character and his fitness to be 
a member of the Senate; but in the former it goes not only to his character and 
fitness, but to his title to the office; and the power of the Senate to examine the 
matter and adopt the proper remedy is expressly given by that clause of the Con¬ 
stitution which authorizes the Senate to judge “ of the election of its members.” 
If this clause does not confer this power, then it is nugatory, for all the other pow¬ 
ers are given in the preceding clauses, which authorize the Senate to judge of the 
qualifications and returns of its members. The Constitution authorizes the Senate 
to judge of three things concerning its members: their qualifications, returns, and 
elections ; but the doctrine contended for by Mr. Caldwell in effect strikes out the 
last, and limits the Senate to the exercise of powers which come under the head of 
qualifications and returns. 

To say that the Senate cannot expel a member for a cause arising before his elec¬ 
tion, when that cause was the very means of the election and brought it about, 
seems to be very unreasonable, anti is to say in effect that, if the crime has a favor¬ 
able result, and the perpetrator of it enters upon the enjoyment of its fruits, he is 
by that very fact exonerated from any inquiry into its character and protected in 
his guilty possession. 

2 GA 


IS 


For example, suppose a man secretly procure the opposing candidate to be pois¬ 
oned, and thus secure his election, and afterward the crime become known; or 
suppose lie secretly procure his opponent to be kidnaped, and the sudden disap¬ 
pearance being unaccounted for, he thus obtain the election; or suppose he pro¬ 
cure his opponent to be arrested upon false charges of crime, and thus for the time 
being disgrace him and break him down, and thus obtain his election; or suppose 
he procure his election by the most monstrous frauds, by intimidation, by gross 
bribery, by buying off the opposing candidates, or by other dishonorable and ille¬ 
gal means, and slip into the Senate before his offenses are discovered—shall it be 
said that the success of his crimes and their successful concealment for the time 
shall become their constitutional protection, and that he may hold on to the seat 
which he has thus illegally and fraudulently obtained ? 

Mr. President, bribery is from its very nature hard to prove. Bribery in matters 
of election by members of a legislature, who are to be presumed to be men of some 
character and standing, who have at least some ambition to preserve a good name— 
bribery upon their part you must suppose will be concealed by every means in 
their power; and we need not be surprised if men who receive bribes deny it under 
oath. 

Mr. GARLAND. That is all of the speech of Senator Morton, who 
made the report in the Caldwell case, that I care to incorporate here. 
The rest of his speech on that occasion referred mainly to the testi¬ 
mony in that case; but in a subsequent speech in that debate, to be 
found on pages 48 and 49 of the same volume of the Record, Mr. 
Morton said: 

Mr. Morton. Mr. President, by leave of the Senator from Illinois, [Mr. Logan,] 
who is entitled to the floor, I will this morning, in answer to a question asked me 
yesterday in debate, and I believe the day before also, read some authorities upon 
the question whether bribery was an offense at common law before the enactment 
of any statute punishing it, and whether the seats of members of the House of 
Commons had been declared vacant on account of bribery before any statute had 
been passed upon that subject. With the indulgence of the Senate I will read very 
briefly some authorities upon that point. 

I read first from Rogers's Law and Practice of Elections. It is an English work, 
I believe of the highest character upon this subject, published in London as long 
ago as 1837. Mr. Rogers says : 

“But numerous instances have not been wanting, in more modern times, in which 
the court of king’s bench have, by the rigor of their punishments, vindicated the 
freedom of elections. Informations, and indictments at the common law, as well 
as actions upon the statute of 2 George II, c. 24, have there been prosecuted, not 
only by private individuals, but by the attorney-general, bjNwder of the House of 
Commons. To bribe a voter is not only an infringement of parliamentary privi¬ 
lege : it is more—a high misdemeanor and breach of the common law. 

“The first time the subject of bribery appears to have been brought before the 
house was in the reign of Elizabeth. 

“OneThomas Longgavethe returniDg-officer and others of theboroughof West- 
bury four pounds to lie returned member. Eor this offense the borough was 
amerced, the member removed, and the officer fined and imprisoned.” 

I have here Coke’s Institutes, in which that case is quoted, and I will read an 
extract from it: 

“Thomas Long gave the maior of Westbury four pound to be elected burjresse, 
who thereupon was elected. This matter was examined and adjudged in the House 
of Commons secundum legem et consuetudinemparliamenti, and the maior fined and 
imprisoned, and Long removed: for this corrupt dealing was to poyson the very 
fountain itself.” 

That was the first case, and was nearly a hundred years before any statute was 
enacted punishing bribery. 

Mr. Rogers further says : 

“ But it was not untif the end of the reign of Charles II that corruption at elec¬ 
tions prevailed to any great extent. 

“ In the year 1669 a bill ‘ to prevent abuses and extravagances in electing mem¬ 
bers to serve in Parliament, and for regulating elections,’ was thrown out. 

“In the Bewdley case, 1676, the committee of privileges and elections reported 
that Mr. Eoley, one of the candidates, had been guilty of bribery. The house 
passed two resolutions, one declaring Mr. Eoley’s election to be void, and the other 
seating his antagonist, Mr. Hobart. 

“In 1677, the treating resolution passed, and in the year following was made a 
standing order of the house. By that resolution, for a candidate to give any per¬ 
son having a voice at an election meat, drink, or present or gift, after the teste of 
the writ, was declared to be bribery, and to be a sufficient ground for the avoiding 
the election as to every person so offending.” 


19 


That was a mere resolution of the house declaring what would be the action of 
the house in such a case. It was not a law, and did not become a law until a great 
many years afterward. 

“In 1680 a bill to prevent the offenses of bribery and debauchery connected with 
election proceedings was thrown out.” 

Parliament refused to pass it. 

“In 1689 a bill to prevent abuses occasioned by excessive expenses at elections 
of members to serve in Parliament, having been read once, was also thrown out. 
This was the year in which the Stockbridge case was determined, which, being 
considered to be of a very gross nature, it was proposed for the borough to be dis¬ 
franchised. The case of Mitchell and Wootton Bassett followed, in the year 1690 ; 
the cases of Chippenham aDd Aylesbury in 1691, .and the second Stockbridge case 
in 1693; in each of which, bribery being proved against the sitting member or 
members, the elections were avoided.” 

Mr. Conklin G. Will the Senator stop there one moment while I ask him whether 
the last case he read was antecedent to the order of the House of Commons which 
preceded the statute. 

Mr. Morton. No, sir; it is subsequent. The resolution of the house was 
passed in 1677; was simply made a standing order of the house, as it was called, 
but was not a law; and another authority shows that it was a declaration of the 
line of action that the house would adopt in such cases. 

“ How general had become the system of corruption, and how insufficient the 
existing laws and resolutions to arrest its progress, is fully proved by the glaring 
examples just cited, following each other in such rapid succession! Those who 
had opposed the bills of 1669, of 1680, and of 1689, now found themselves called upon 
to adopt a different line of conduct. The opinions of the wisest and most honest 
statesmen, embodied in the resolutions and standing orders of the house, had been 
set at defiance, and the first and best principle of the constitution, the freedom of 
election, was daily and unblushingly violated. Taking, therefore, the treating res¬ 
olution of 1677 for its basis, the house, in 1696, passed the 7 William III, c. 4, now 
generally known by the name of the treating act ”— 

making it an offense to give meat or drink to a man who had the right to vote ; 
and that was the first enactment ever passed by the British Parliament upon the 
subject. 

“Hitherto treating has been considered as a species only or mode of bribing. 
Since the act of William, however, treating and bribery have usually been consid¬ 
ered as separate charges and distinct grounds of petitioning. Pirst, then, of brib¬ 
ery, properly so called. 

“A candidate or other person is said to be guilty of bribing, if, ‘by himself, or 
any person employed by him, he doth or shall, by any gift or reward, or by any 
promise or agreement, or security for any gift or reward, cdrrupt or procure any 
person to give his vote, or to forbear to give his vote, in any such election.’ Such 
is the definition which is given of bribery in the statute 2 George II. c. 24.” which 
was the first act ever passed punishing bribery, and that was passed in 1727. Mr. 
Bogers goes on to say: 

“This statute, however, did not create the offense; bribery, as we have seen, had 
always been a misdemeanor at common law, and a violation of the privilege of Par¬ 
liament; but the above statute armed courts of law with new and extraordinary 
powers to check the growing evil, by attaching a penalty of £500 on every convic¬ 
tion of an offense against its provisions, and by disqualifying the offender from 
ever again voting in any election for members of Parliament.” 

Not only this authority, but Sheperd lays it down distinctly, that the power of 
the House of Commons to declare an election void upon the ground of bribery is 
not affected by the statute at all, but grows out of the principles of the common 
law. 

Now I will refer to a case that I referred to the day before yesterday, in Bur¬ 
rows— 

Mr. Sherman. I wish to ask my friend from Indiana a question upon the very 
point he is now discussing, especially in connection with a quotation from Sheperd, 
used by him in his remarks the other day. The quotation that I refer to is this : 

“ Bribery by a candidate, though in one instance only, and though a majority of 
unbribed votes remain in his favor, will avoid the particular election.” 

I wish to ask him whether he finds in our own parliamentary history in either 
House of Congress, or in England, any particular case where the bribery of a par¬ 
ticular person, though it did not affect the election, or did not control the election, 
unseated the member. Must not the bribery extend to a sufficient number of votes 
of the constituent body to affect the result ? That is the question upon which I 
desire information. 

M r. Morton. I will state that in all these cases no reference is made to the num¬ 
ber of votes that had been purchased. It is never put upon that ground, but it is 
put upon the ground expressed by Lord Coke, that bribery poisons the whole fount¬ 
ain. The effect of bribery in avoiding an election is never put upon the number 


20 


of votes that have been bribed, but simply upon the act as poisoning the whole 
election, to use the language of Lord Coke, poisoning the whole fountain ; and it 
has been compared by another author to fraud in a contract. What fraud is to a 
contract, bribery is to an election. 

Mr. Sherman. In the House of Eepresentatives there are many cases—I do not 
know whether cases of bribery, but many cases of fraud in elections; but tiuless 
the frauds in the election go' to a sufficient extent to affect the majority of the 
elected candidate, they are governed by the actual number of legal votes cast, 
although frauds, violence, intimidation^ and perhaps bribery may have entered 
into it. That is the point I want to get at, whether there is any distinction in par¬ 
liamentary law between fraud and bribery. 

Mr. Morton. I am not prepared to answer that question any further than this : 
I consulted with the chairman of the Committee on Elections in the House, who, I 
believe, has been the head of that committee for many years, and he told me there 
had been no case of bribery arising in the House with which the candidate was 
connected. I think he said he did not doubt but that the law would be in the 
House, as it is in England in a case of bribery with which the candidate or sitting 
member was’connected, to invalidate the election. 

Mr. President, I will read an authority from Lord Mansfield. This decision was 
made in 1762. In this case the prosecution was based on the common law, not on 
the statute of George II, and a motion was made for a nonsuit, upon the ground 
that the case should have been brought upon the statute, and not upon the com¬ 
mon law. Lord Mansfied said: 

“ Bribery at elections for members of Parliament must undoubtedly have always 
been a crime at common law, and, consequently, punishable by indictment or infor¬ 
mation. But the action of 2 George II, c. 24, has introduced a very severe penalty 
in order to enforce the laws then already in being, and because they had not been 
sufficient to prevent the evil.” 

He then goes on to quote the statute, and after that he says: 

‘‘ This crime certainly still remains a crime at common law. The Legislature never 
meant, to take away the common-law crime, but to add a penal action.” 

There is more of it, but that is sufficient to explain its character. 

How I come to the statement that my friend read from Sheperd just now, and 
I will detain the Senate for a moment by calling his attention to a passage in the 
argument read by Mr. Caldwell yesterday, which, I suppose, it would be no breach 
of etiquette to say must have been prepared by a lawyer, not by himself; he does 
not claim to be a lawyer. He makes the statement that there is no case where a 
member of Parliament had been expelled before the enactment of the statute pun¬ 
ishing bribery. His lawyer ought not to have made such a statement, because it 
is directly in conflict with what he ought to have known was the law. But he 
makes another statement: 

“English statute-law provides that 1 bribery by a candidate, though in one in¬ 
stance only, and though a majority of unbribed votes remain in his favor, will avoid 
the particular election and disqualify him for being re-elected to fill such vacancy.’ ” 

The passage is put in quotation marks as being taken from an English statute. 
There could scarcely be an excuse for this. He refers to Sheperd, page 103. How, 
I will read that. The fact was, that Sheperd said that the power of the House of 
Commons over the election did not depend upon the statute ,law at all, but depended 
upon the law of Parliament, and then he gave the law of Parliament, which is 
quoted here as the statute. Says Sheperd: 

“The bribery act makes no mention of any parliamentary disqualification affect¬ 
ing a member’s seat; the effect, therefore, of an act of bribery not within the words 
of the treating act, act of 7 William III, c. 4, is in that respect determined by the 
law of Parliament, as follows: 4 Bribery by a candidate, though in one instance 
only, and though a majority of unbribed votes remain in his favor, will avoid the 
particular election and disqualify him from being re elected to fill such vacancy.’ ” 

Here Mr. Sheperd expressly states that the power of the house to declare an elec¬ 
tion void does not depend upon the statute, but depends upon the law of Parlia¬ 
ment ; but Mr. Caldwell’s counsel just reverses it, and he says that the statute of 
England says so and so in regard to bribery avoiding the election, which is the 
particular point which Mr. Sheperd was contradicting. 

There are several other authorities which I thought I had here, but I have left 
them on the table in my committee-room. Perhaps I shall have occasion to read 
them afterward, as the debate progresses. This is all I intend to say this morning. 

This position of Mr. Morton in his report and in those speeches was 
contested by eminent Senators at that time. I recollect distinctly 
having read speeches of the Senator from New York, [Mr. Conk- 
ling,] of the Senator from Delaware, [Mr. Bayabd,] and others, 
who opposed the proposition advanced by Senator Morton, and it is 
due to truth to state that the report was never acted upon, and it is 
still further true that Mr. Caldwell resigned and quit this body. 



21 


I give the report of Mr. Morton and his speeches fir wliat they are 
worth. They are absolutely convincing to my mind, and for that 
reason I use them literally. I say with Mr. Morton that the Senate 
can by a majority vote vacate the seat of a Senator here for bribery 
in procuring his election. Mr. Morton’s speech draws the distinction 
clearly and conclusively to ray mind between the power to expel by 
a two-thirus vote after a Senator has become connected with the 
body and the power to go back to the original fountain of his seat 
here, the election, aud vacate it because the election was corrupt, 
and therefore was not an election at all within the meaning of the 
law. 

This inherent power, outside of the power of the Constitution, which 
every deliberative assembly has, to say that a man is a proper person 
to sit in the body, was placed in the Constitution out of abundant 
caution to put it beyond interference by any other department; and 
this power the Senate can never surrender, it always possesses the 
right to go back, and see whether the real foundation, a free election, 
exists, and it does not go to the point that a Senator’s term shall last 
six years unless a majority of the Senate shall determine otherwise. 
I say a majority of the Senate may determine that the election is 
illegal because they are to judge of the election. By all the author¬ 
ities it is illegal and ought not to contribute to the composition of 
the body if it was effected by bribery. That is the proposition. 

Now we come to the question has there been by the sitting Senator, 
directly or indirectly through his agents, with his knowledge and 
consent, a use of these improper means to obtain the seat. 

Mr. EDMUNDS. May I ask the Senator a question merely for in¬ 
formation, not to argue it? 

Mr. GARLAND. Certainly. 

Mr. EDMUNDS. Do I understand the Senator to say that if in the 
case of the election of a Senator who had if you please 25 majority in 
the Legislature, it ap peared that he had bribed one member, that would 
render the election illegal? 

Mr. GARLAND. Most indisputably. It prevents a free election, 
and I read the authority of Senator Morton for that position in this 
Senate in response to a question put to him by the Senator from Ohio, 
[Mr. Sherman.] 

Mr. EDMUNDS. May I ask if there is not in the same book con¬ 
siderable authority of the same dignity the other way ? 

Mr. GARLAND. The Senator would not have asked me that ques¬ 
tion if he had been here and heard me before. I stated by name the 
Senators who opposed that view of the case, and I have quoted the 
language of Mr. Morton as I use coin, for the value that is contained 
in it and not for the stamp or the figure or the impress upon it. It rs 
coin that has not been battered away, in my judgment, by any Sen¬ 
ator who contended against it on the floor. The reasoning is unan¬ 
swerable if there is anything like free election in this country. 

Then we come to the question, Has there been the exercise of this 
influence in the procuring of this seat ? Now I ask the Senator from 
North Carolina [Mr. Vance] to read a summary of the testimony that 
he has in his speech in the Record. 

Mr. VANCE read as follows: 

On the subject of bribery, before I pass from it, let me briefly refer to the testi¬ 
mony. The bribery of Blackstone, and of De Lacy, and of Milton Jones, and of J. 
J. Johnson, and of A. Milson, all members of the Packard legislature, is proven by 
their own confessions as contained in their affidavits and in divers declarations to 
other men. Souer’s testimony, a member of the Legislature, and the intimate 
friend of Governor Kellogg and the confidential agent of that gentleman up to this 


oo 


present time, as we see by the telegraphic cipher dispatches—Souer’s testimony, 
from pages 1123 to 1124, shows that the Legislature, being unable to draw any 
money from the treasury of Louisiana, was kept together by advances made by 
him, and that he selected the poorest and the most dependent ones to make his ad¬ 
vances to ; and he admits that he did so for the purpose of keeping them together 
and promoting the interest of the republican party. If you will read that testi¬ 
mony carefully you will find, in my opinion, sufficient to establish the proof of 
the bribery 7 of these men by it alone. 

As to the bribery of Senator Twitchell, read the testimony of Garrett, page 809, 
who likewise had a habitation in this very custom-house at one time. 

Mr. KELLOGG. I should like to ask the Senator wliat he is read¬ 
ing from. 

Mr. VANCE. I am reading from my own speech delivered a few 
weeks ago, at the request of the Senator from Arkansas. 

Mr. KELLOGG. What page ? 

Mr. VANCE. The Record of the 5th of May, 1880, page 9: 

As to the bribery of Senator Twitchell, read the testimony of Garrett, page 809, 
who likewise had a habitation in this very custom-house at one time. Twitchell 
is now consul in Canada. And Twitchell, as the other members of the committee 
say, proves his own innocence by his own oath ; that is to say, the man charged 
with the crime comes into court and purges himself by stating that he is not guiity! 
Twitchell denies that he was bribed, and that ought to be satisfactory it is thought 
by the other side, but Twitchell unfortunately had made admissions to other men, 
many others; he made admissions to Francis Garrett that he had received this 
bribe, or rather Garrett saw the bribe passed over to him. Garrett says he was in 
the room when the money was passed. 

As to acknowledgment of the bribery of Milton Jones, read the testimony of 
Cavanac, page 993, and as to the bribery of De Joie and Stamps see the testimony 
of Flanagan, pages 599 and GOO. As to the bribery of Dickerson, see the testimony 
of Dreifus, page 668, and Cavanac, page 926. As to the bribery of C. F. Brown, see 
Cavanac’s testimony, page 926. As to the bribery of Simmes, McGloire, and Rob¬ 
ert Johnson, see Murray’s testimony, page 117. As to the bribery of Percy Baker, 
see Carnoy’s testimony, pages 453 and 454. As to the bribery of the Packard legis¬ 
lature generally, see Do Lacy’s testimony, pages 152, 153, and 154, and Watson’s 
affidavit, page 334. 

Mr. GARLAND. Mr. President- 

Mr. KELLOGG. I ask the Senator from Arkansas to allow me to 
make a single remark. The Senator from North Carolina has read 
an extract from his speech, on page 9 of the Record of May 5, in 
these words: 

As to the bribery of De Joie and Stamps, see the testimony of Flanagan, pages 
599 and 600. 

This man Flanagan testified that he saw this money pass from a 
certain man by the name of Harris to De Joie, a member of the house, 
and Stamps, a member of the senate ; but finally, ou cross-examina¬ 
tion, he admitted, just before he left the stand, that the transaction 
was in 1876, and not in 1877—a year before the election. Mr. Stamps 
was a commission merchant in New Orleans, and swore positively that 
he was not in the office at the time designated, and that no such trans¬ 
action took place ; and he is not in the custom-house, but is a business 
man. He is not impeached, and is unimpeachable. Mr. De Joie swore 
the same thing positively, and Mr. Harris, the man that Flanagan said 
paid the money, came from Kansas City, where he was a merchant, 
and swore befoie the committee positively that no such transaction 
took place. 

As to the bribery of Simmes, McGloire, Robert Jobuson— 

Mr. Simmes is a member of the present Legislature of Louisiana, 
and was a member of the constitutional convention that sat last sum¬ 
mer, and is a planter of Saint James Parish, who was never in the 
custom-house, and never held a Federal office. Mr. McGloire was a 
member of a Nicholls legislature from the parish of Avoyelles, was a 








23 


planter, and never held a Federal office. Robert Johnson was a busi¬ 
ness man from Terre Bonne, elected by conservatives as well as repub¬ 
licans. 

All three of these men swore positively that they never received 
any money, and contradicted absolutely and unqualifiedly the testi¬ 
mony of Murray, and Murray was impeached by democrats and re¬ 
publicans. 

Then as to Garrett, who testified as to Jones ; Jones swore that no 
such thing occurred, and I brought forward democrats, at the head 
of them the criminal sheriff of the parish of Orleans, John Fitzpat¬ 
rick, who swore positively that Garrett’s character was such and that 
he was so infamous that he would not believe him under oath. We 
have proved that he was an ex-convict; he had been arrested for 
horse-stealing in Missouri; we proved he had been sent down to the 
parish prison, and served nearly three months for larceny; that he 
had been dismissed from the custom-house at New Orleans for steal¬ 
ing one hundred and sixty dollars’ worth of paints at the quarantine, 
and we covered him all over with infamy; and that is the only one 
man, except the man Bougnon whom he refers to, who swore that 
any money passed; and as to Bougnon we contradicted his testimony 
positively by democratic evidence. He said he saw money paid to 
Mr. Twitchell, and that a Mr. Flynn was present, and we contradicted 
it by Mr. Twitchell, who is consul at Kingston, and he was not ap¬ 
pointed by my solicitation or intervention, but appointed nearly two 
years ago, and he swore unqualifiedly that no such thing took place. 
Besides we impeached him. That is all there is of this testimony, 
every iota. 

Mr. CAMERON, of Wisconsin. Mr. President- 

Mr. GARLAND. I cannot yield further. 

Mr. KELLOGG. I ask gentlemen to point out a single instance ex¬ 
cept those I have named of any testimony of that kind. 

Mr. CAMERON, of Wisconsin. Will the Senator from Arkansas 
allow me to make a single remark. I wili not occupy a minute. 

Mr. GARLAND. When I get through the testimony I will state 
all the crooks and cranks that in his estimation the Senator from 
Louisiana may think it worth while to affix, and the result will be to 
make the case for him worse than it was before. 

Mr. CAMERON, of Wisconsin. I only wish to speak in regard to 
the bribery of Piercy Baker. All the testimony there was in regard 
to that was this : some witness swore that some time after the elec¬ 
tion Piercy Baker paid him a poker debt and he remarked that he 
made that money on the Kellogg election. He did not state that he 
received it for voting for Kellogg. He did not state whether he 
made it by betting on the election or otherwise, but merely that he 
had made that amount of money out of the election of Kellogg. 

Mr. GARLAND. I called upon the Senator from North Carolina 
[Mr. Vance] to read the epitome of the testimony he had heard, be¬ 
cause he had been with the case from its inception as one of the com¬ 
mittee. I have analyzed this testimony from the record, and I have 
an analysis of it here, which I will read*to the Senate and make com¬ 
ments upon as I go along. There is no disposition on my part to do 
the sitting Senator from Louisiana any injustice. I will state in this 
epitome of the testimony that I have here all the cross-tracks and all 
the cross-firing there is upon the case. I have no disposition at all to 
wound the Senator in any way. He and I have been upon the same 
committee since he has been in the Senate, and our relations have 
been agreeable. This is an unpleasant duty, but nevertheless it is a 


24 


duty. If the recording angel could drop a tear upon this whole vol¬ 
ume and blot it out forever I should be glad; but it is here and de¬ 
mands inspection. I will now call the attention of the Senate to the 
analysis that I have made of this testimony upon this point, for this 
is the only point that I could take the time to address the Senate 
upon. 

Joseph J. Johnson, page 55 : 

Deposition of J. J. Johnson, in which he swears that he received 
$200 for voting for Kellogg, and that George Washington, a member 
from Concordia, also was paid money. 

Afterward, on examination in committee, he denied the statements 
in the deposition, (see page 56,) but admitted that he borrowed $25 
or $30 from Colonel Souer on his pay-warrants, and that he never 
returned it because the warrants were never paid. 

Examined (page 58) in regard to deposition; admits that it was 
read to him, and that he signed it. 

Now Thomas Murray, sergeant-at-arms of the house of representa¬ 
tives of Louisiana, testifies (page 92) that men showed him money 
paid them by Colonel Souer for voting for Kellogg ; some got as 
much as $200. 

Upon page 93, more than one showed him money—from three to 
five. 

Page 94: The following showed money to the witness, and said they 
got it for voting for Senator Kellogg: “Sonny” Simmes, of Saint 
James; Magloire, of Avoyelles Parish; Robert Johnson, of Terre 
Bonne—$200 apiece. 

Mr. KELLOGG. I ask the Senator from Arkansas if all of those 
three men did not come before the committee and swear that it was 
not true ? 

The PRESIDING OFFICER, (Mr. Ransom in the chair.) Does the 
Senator from Arkansas yield ? 

Mr. GARLAND. I need not yield for the reason that that will all 
be stated. If the Senator’s anxiety is not suppressed it may betray 
him into an uneasiness here that will reflect upon the real, clear, fair 
record that he ought to have. I do not mean to make it any worse 
than it is, or try to deviate from it. If he can explain it I will be 
perfectly satisfied. 

On page 101 it appears that some twenty-odd ex-members of the 
Packard legislature were put in the custom-house since the 4th of 
March, 1877. 

Murray reiterates (pages 115, 116, and 118) his statement concern¬ 
ing the payment of $200 to various members for voting for Kellogg. 

He says (page 130) that Thomas, of Bossier, who is recorded in the 
journal as present in the joint convention when the vote was cast for 
►Senator, was not present but was sick and at home. 

Page 131: Knew he was sick; saw him in bed; had the small¬ 
pox, and afterward died. 

A Mr.Watson (page 139) personates a member of Legislature (Thomas) 
and votes in his stead. Contradicted by W. John De Lacy, (page 150.) 
Watson denies above, (pages 324-334.) 

Watson appointed as night inspector in the custom-house, (page 
140.) 

The names of the men whom witness saw Souer pay were George 
Washington, of Concordia, and his colleague, Anderson Tolliver, 
(page 143.) 

Richard J. Brooks saw Thomas vote for United States Senator, 
(page 283.) 




25 


Murray wanted him to swear that he was bribed to vote for Kel¬ 
logg, (page 284.) 

Charles F. Brown saw Thomas and Seveignes vote for Kellogg, 
(page 296.) 

^John T. Fitzsimmons would not believe Murray on his oath, (page 

It seems they do not any of them believe each other on oath, or any 
one that was concerned in that business down there. William John 
De Lacy, page 179, admits that he was promised $200 to vote for Kel¬ 
logg. Lewis F. Baugnon, on page 663, saw Kellogg pay Senator 
Twitchell $300, and that it was on the promise that he would vote for 
Kellogg. 

Mr. EDMUNDS. Mr. President- 

The PRESIDING OFFICER. Does the Senator from Arkansas 
yield to the Senator from Vermont ? 

Mr. GARLAND. Yes, sir. 

Mr. EDMUNDS. May I ask the Senator if he can state as he goes 
along in each case what person it is who makes these promises and 
payments, so that we can understand the force of the statement ? 

Mr. GARLAND. I will. G. L. Smith made the promise to which 
the Senator refers. 

Mr. EDMUNDS. I suppose if myself or the Senator had made these 
promises it would not be absolutely necessary to crucify Kellogg on 
that ground. 

Mr. GARLAND. Possibly it would not. We shall see, though, 
after a while. 

Onpage665, Baugnon, examined by Kellogg, says “you (Kellogg) 
just put it in his pocket. 

Albert Bourges testifies (page 1000) that Baugnon’s general character 
is not good ; would not believe him on oath. 

Albert W. Flanagan, (page 610,) affidavit of, in which he swears 
that Harris paid Aristide De Joie, a representative, $300 to vote for 
Kellogg and that he saw same party pay T. B. Stamps, a State sen¬ 
ator, $500 to vote for Kellogg. 

Witness identifies affidavit (page 608) as his and that statements in 
it are true. 

Francis Garrett, (p. 810,) concerning Kellogg’s transaction with 
Milton Jones. Jones admitted being paid for his vote—“ Got a little 
but not much, and they had promised him some place in the custom¬ 
house, but they had gone back on him and fooled him.” 

Senator Twitchell said (p. 811) there were not twenty votes that 
Kellogg could get unless he bought them. 

Jones said (p. 811) he had the money in his pocket—that he had 
made him (Kellogg) comedown. 

Senator Twitchell said (p. 812) they had agreed and had the money, 
and the crowd was to vote for Kellogg that day * * * he had 

just seen Kellogg again, and he had to pay out more money. 

Milton Jones (p. 906) denies that he ever got money for voting for 
Kellogg. 

Milton Jones’s affidavit, (p. 1236:) was paid money by Souer for vot¬ 
ing for Kellogg. 

Jeremiah Blackstone, (p. 1237:) Kellogg gave him $1,000 to be used 
in promoting the election of persons who would vote for Kellogg for 
Senator. After election on January 6, 1877, Kellogg sent for him; 
met him in his private office in Saint Louis Hotel and gave him $1,000 
which he used in buying votes for Kellogg. Kellogg promised him 

all the patronage in his district and that he should always be cared for. 

# * # * * # 


26 


After the election of Kellogg to the Senate deponent was paid by 
Louis J. Souer $200 as extra compensation and for voting for Kel¬ 
logg. 

On page 1120 Louis J. Souer denies this statement. 

Mr. CAMERON, of Wisconsin. Will the Senator call attention to 
the fact that Blackstone in his testimony before the Senate denies 
that? 

Mr. GARLAND. I have called attention to it. It is in this anal¬ 
ysis. 

Mr. CAMERON, of Wisconsin. I did not hear it. 

Mr. GARLAND. If it is not the Senator can put it in. 

Mr. KELLOGG. Will the Senator also incorporate in his state¬ 
ment if it is not in (I did not understand him to read it) that not only 
did Blackstone deny it under oath, but every person mentioned in 
Blackstone’s affidavit came forward and denied it under oath ? 

Mr. GARLAND. That I do not know to be the fact. If it is, how¬ 
ever, it can go in with the statement. 

Mr. KELLOGG. Every living man mentioned denied it, and none 
of them is in the custom-house either. 

Mr. GARLAND. Senator Morton said in the case from which I read a 
little while ago, that it was not unnatural for a man who had been bribed 
to 8wear that he had never been bribed. We are now remitted to the 
question whether this testimony, taking it with all of its cross-firing 
and cross-tracks of the witnesses, is worthy of belief. It is said on 
the part of the sitting Senator and those who contend that he should 
be here, that you cannot believe these persons on oath. Then more 
horrible and more frightful is the record explaining it, Mr. Presi¬ 
dent, when we see here more of these persons than you can count 
upon your fingers and toes honored by the highest offices and the 
highest trusts. Yet they cannot be believed upon oath. Some of 
them have been confirmed by the Senate. All who are in the custom¬ 
house, if I understand the law, have to be confirmed and ratified by 
the Secretary of the Treasury, who is now a prominent candidate for 
the highest office in the gift of the American people. Horrible, horror 
beyond horror, the Senator from Louisiana rides upon these men to the 
Senate and turns upon them and says: “You were worthy to elect me 
to the Senate, but you cannot be believed upon oath in the Senate to 
which I go; ” like the man who climbs to the place he occupies and 
kicks over the ladder that carried him up successfully. Saturn, cold 
and remorseless, perhaps hungry, turned upon his offspring and made 
a choice repast. 

It may be true that this would be dangerous testimony to take into 
a court to 9 onvict men who had not been associated with that class 
of persons. There is a familiar maxim in the law which I wish to 
read now to the Senate as applicable to this case. You can never 
unkennel fraud except by the testimony of those who are partici¬ 
pants in that fraud. You can never bring to light the horrid and 
hellish deeds of conspiracies except by the testimony of conspirators. 
You would never get a conviction in the Five Points of New York 
City unless you took the testimony of people who hacl their existence 
and breathing in such a place. As to all these dens, who but inmates 
can prove what has occurred there ? Wharton in his Legal Maxims 
lays down: 

Testis lupanaris suffidt ad factum in lupanari : 

A strumpet is a sufficient witness to a fact committed in a brothel. 

He cites the Reports of Moor. I have taken the pains to go back 
and get that original case. It is in a language that I am not so fa- 


.27 


miliar with, as I am with the English language, and I have had it 
translated ; and I ask the Secretary to read it, if he pleases. 

The Chief Clerk read as follows : 

[From Moor (Fr.) cases collect and report.: 2d ed., London, 1688; pp. 816, 817.1 

SIR ANTHONY ASHLEY’S CASE. 

In this term, Michaelmas, in the year 9th .James, in the Star Chamber, a great 
case was tried: Sir Anthony Ashley, knight, plaintiff, and Sir James Creiton, knight, 
and divers others defendants, for conspiring to accuse the plaintiff of murder com¬ 
mitted sixteen years before in the poisoning of one Rise, and that some of the de¬ 
fendants, (to wit,) Henry Smith and Jane, the wife of Rise, should be the witnesses 
of the murder, and Sir James Creiton, being a Scotchman by birth and one of the 
esquires of the king’s service, should beg of the king the forfeiture of his goods 
anu lands, that he might make recompense to the other defendants, and articles 
were drawn up, whereby Sir James agreed that one Cantrel should have the sixth 
part of all that he obtained from the king, and Cantrel covenanted to procure 
witnesses and also the particulars of the lands and the goods. And Sir James 
gave £8,000 bonds for the performance of these articles, which articles were for 
the advantage of Smith, and the name of Cantrel was used in trust for him, Smith 
being the party who should accuse Sir Anthony and himself also, (to wit,) that lie 
being a servant to Sir Anthony, Sir Anthony put poison in a cup with the drink, 
and commanded Smith to carry this to Rise, that he did accordingly, and that Rise 
from this died immediately; and it was proved that Sir James offered to Smith to 
obtain his pardon if he would accuse Sir Anthony and himself also; and moreover 
offered him protection against his creditors and £500, for which Smith caused an 
indictment to be made against himself and Sir Anthony, and sent a petition to the 
king in which he made known the accusers of Sir Anthony, and prayed for mercy 
for himself, besides giving other matters and circumstances relative to the con¬ 
spiracy. I'or which Sir James was fined £1,000, and committed to prison. And 
Horning, another of the defendants, was condemned to the pillory and burnt with 
a hot iron on both his cheeks, on the one with an “ F,” on the other with a “ C.,” 
(that is)signifying “afalse conspirator.” And Thomas Hampton, Jane Dudley, 
Cantrel, Sterling, and others were sentenced to £300 fine, pillory besides, and im¬ 
prisonment. And note that in this case the lord chancellor cited divers precedents 
in this court of censures for conspiracies and false accusations to the danger of the 
life of the party. As in 36 H. 8, a priest was fined for a false accusation. In 41 
Eliz., one Wood, who was a physician conspiring to accuse one Talbot of wishing 
to poison the Count of Salop, own brother of Talbot. The wife of Fowler con¬ 
spired with Gascoigne and Eymes to accuse Fowler of high treason. One Love¬ 
lace accused another in letters from Yenice, the paper being discovered by the 
mark of Spelman to bean English paper and not Venetian. Munck’s case was 
cited from the Inner Temple, wTio was accused of a robbery by Pye, and on this 
was indicted and arraigned and found not guilty, and Pye was condemned to lose 
ki 3 ears upon the pillory, year 3d of King James. Sheppard accused one Hamersley 
of a felony committed twenty-eight years before in stealing a sheet; he was indicted 
for this, and arraigned and found not guilty, for which Sheppard was condemned to 
the pillory, &e. In this term occurred Stone’s case against the Poulterers of Lon¬ 
don for accusing him of a robbery for which they preferred an indictment at 
Chlemsford and Essex, and gave testimony, and the jury found an ignoramus, 
yet for this conspiracy they were fined, in this court, 8th year of James. 

And note many things: 1. That in such accusations there should appear appar¬ 
ent malice or corruption. 2. That although au ignoramus should be found yet the 
conspiracy is finable here. 3. Legitime acquietatus [though settled in law] it is yet 
finable in'the Star Chamber. Noted by Cook and the Lord Chancellor that Brac- 
ton says: Accusator post rationabile tempus non est audiendus nisi se bene de omis- 
sione excusavrit , [after a reasonable time the accuser shall not be heard unless he 
gives good reason for his failure to appear.] Noted by Cook that suspicion upon 
the report of another is no cause for an accusation; there must be one’s own sus¬ 
picion founded on fact. And common fame must be apud graves not apud leves, 
[concerning weighty matters, not concerning superficial things ] And for a fact 
inlupanari , testis lupanaris, [in a brothel, a strumpet witness suffices,] and humores 
moti, and moti remoti laedunt corpus , [humors present and not remote affect the 
body.] Consortia malorum me quoque malum fecit, [the company of evil-doers made 
me also evil.] Noscitur ex socio qui non cognoscitur ex se, [he is known from his 
company who is not known from himself.] 

Mr. GARLAND. Mr. President, ever since the enunciation of these 
principles there has never yet been a trial of conspirators for any un¬ 
lawful purpose, or a trial of persons *or offenses committed in lewd 
.places or in places notoriously infamous, where the offenders were 


4 


28 


not tried upon the testimony of those who lived in and inhabited 
such places. The sitting member was there with those people, and 
they were his friends, so friendly to him as to send him to the United 
States Senate. If the world would not know him from himself, they 
would know him from his associates, according to the maxim laid 
down there. It is probable that you would not find the most exalted 
characters for virtue and for veracity in a place of that sort. The 
testimony is that they were barricaded there and with none to asso¬ 
ciate with but themselves. If this testimony cannot be believed, the 
proposition proves too much. It is all a chaos; it is all nothing if 
those who hatched out the credentials of the sitting member cannot 
be believed on oath. Take that horn of the dilemma, that they are 
not to be believed at all, and everything is swept from under them. 
Three or four or five have been confirmed by the Senate to positions; 
twenty or more have gone into the custom-house. 

An honorable Senator told me the other day that he had examined 
this testimony and that he could not convict a dog upon it. There 
is old dog Tray, who is known in historic song as gentle and kind 
and a devoted friend, but he was convicted because he was found in 
bad company. It is true in law, in social life, in religion, in politics, 
in everything, and you cannot escape it, that “ birds of a feather flock 
together.” “ Tell me with whom you walk and I will tell you who 
you are.” The plea itself is set up by the persons who have done 
this slimy thing for the State of Louisiana and for the sitting Sen¬ 
ator that they cannot be believed on oath. They are infamous now, 
but they were good enough to do the work of electing the sitting 
member; and it is asking a little too much of human credulity for 
the sitting member to tell us they cannot be believed on oath. I am 
sorry it is so; I am sad that it is so. 

Mr. President, I have laid my views in this case before the Senate 
under a sense of duty. Probably neither by parliamentary nor any 
other law was I called upon to say anything on this question ; but 
my own State has had to taste the hell-broth that has been com¬ 
mended to the lips of Louisiana through reconstruction, and we have 
seen these things there. I wish that sad record was blotted out; I 
wish it was erased from memory. I say not these things in anger, 
but I say them in sorrow. 

Mr. President, as the result of my investigations in this case, I beg 
leave to have a resolution read which I shall offer as a substitute 
when the proper time comes. 

The PRESIDENT pro tempore. The resolution will be reported. 

Mr. GARLAND. I will read it myself : 

Resolved, That William P. Kellogg was not duly and legally elected to the 
Senate of the United States by the Legislature of Louisiana, and that the seat now 
occupied hy him in the Senate he, and~the same is hereby, declared vacant. 


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